New Jersey Division of Youth and Family Services v. S.M.

September 4, 2009

NEW JERSEY DIVISION OF YOUTH AND FAMILY SERVICES, PLAINTIFF-RESPONDENT,v.S.M., DEFENDANT-APPELLANT,IN THE MATTER OF THE GUARDIANSHIP OF J.M., MINOR.NEW JERSEY DIVISION OF YOUTH DOCKET NO. A-1483-08T4 AND FAMILY SERVICES, PLAINTIFF-RESPONDENT,v.J.F., DEFENDANT-APPELLANT,IN THE MATTER OF THE GUARDIANSHIP OF J.T.M., MINOR.

On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Camden County, Docket No. FG-04-93-08.

Per curiam.

RECORD IMPOUNDED

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Argued August 4, 2009

Before Judges Lihotz and Baxter.

In these consolidated matters, S.M. is the mother and J.F. is the father of J.T.M., who was born on November 11, 2005.*fn1 The parents appeal from a judgment entered on June 24, 2006, terminating their parental rights and awarding guardianship, care and custody of J.T.M. to the Division of Youth and Family Services (DYFS or Division). Visitation between the parents and the child continued pending appeal.

On appeal, S.M. raises the following points for our consideration:

POINT I: DURING THE TRIAL, DOCUMENTS WERE ADMITTED INTO EVIDENCE AND TESTIMONY WAS PERMITTED ABOUT UNFOUNDED AND UNSUBSTANTIATED DIVISION REFERRALS (NOT RAISED BELOW).

POINT II: THE TRIAL JUDGE MADE INACCURATE FINDINGS OF FACT AND CONCLUSIONS OF LAW THAT RESULTED IN TERMINATION OF PARENTAL RIGHTS AND THE DIVISION FAILED TO PROVE BY CLEAR AND CONVINCING EVIDENCE EACH OF THE FOUR PRONGS OF N.J.S.A. 30:4C-15.1, AND, THEREFORE, [S.M.'S] PARENTAL RIGHTS TO HER DAUGHTER, [J.T.M.], MUST BE REINSTATED.

A. The trial judge's findings of fact and conclusions of law were not consistent with the evidence.

B. The trial judge improperly found that the first and second prongs of the statute were satisfied.

C. The trial judge improperly found that the Division satisfied the third prong of the statute.

D. The Division failed to demonstrate that termination of [S.M.'s] parental rights will not do more harm than good.

J.F. raises these points for review:

POINT I: THE ELEMENTS OF N.J.S.A. 30:4C-15.1 WERE NOT PROVEN BY CLEAR AND CONVINCING EVIDENCE.

A. J.F. never harmed J.T.M. in any way and prior incarceration does not give rise to a presumption of parental unfitness.

B. After having been released from jail, J.F. has visited with J.T.M. and has stood willing and able to remove whatever harm the Division may perceive he caused J.T.M.

C. The Division did not provide reasonable services to J.F. while he was in jail or after his release.

D. A strong bond with the foster parent does not constitute an independent basis for termination of parental rights under the fourth prong.

We have considered the arguments raised in light of the record and applicable legal standards. We affirm.

I.

Our review is guided by the following principles. The right of parents to enjoy a relationship with their children is constitutionally protected. In re Guardianship of K.H.O., 161 N.J. 337, 346 (1999). Parents have a fundamental liberty interest in raising their children. Santosky v. Kramer, 455 U.S. 745, 753, 102 S.Ct. 1388, 1394, 71 L.Ed. 2d 599, 606 (1982). Both the federal and state constitutions protect the inviolability of the family unit. See Stanley v. Illinois, 405 U.S. 645, 651, 92 S.Ct. 1208, 1212-13, 31 L.Ed. 2d 551, 558-59 (1972); New Jersey Div. of Youth & Family Servs. v. A.W., 103 N.J. 591, 599 (1986).

"The law's concept of the family rests on a presumption that parents possess what a child lacks in maturity, experience, and capacity for judgment required for making life's difficult decisions." Parham v. J.R., 442 U.S. 584, 602, 99 S.Ct. 2493, 2504, 61 L.Ed. 2d 101, 118 (1979). This presumption, however, is not always true. "[E]xperience and reality may rebut what the law accepts as a starting point[.]" Id. at 602, 99 S.Ct. at 2504, 61 L.Ed. 2d at 119. As evidenced by child abuse and neglect cases, some parents "may at times be acting against the interests of their children." Ibid. Thus, "the right of parents to be free from governmental intrusion is not absolute." A.W., supra, 103 N.J. at 599. "More recently, 'concern has arisen for the best interests of children whose parents have forsaken their parental duties. The child's right to a permanent home has gained increasing prominence.'" In re Guardianship of P.P., 180 N.J. 494, 505 (2004) (quoting In re Adoption of Children by G.P.B., Jr., 161 N.J. 396, 404 (1999)). Undoubtedly, J.T.M.'s need for permanency and stability was a critical factor in this case.

When a child's biological parents resist the termination of their parental rights, the court's function is to decide whether the parents can raise the child without causing the child further harm. In re Guardianship of J.C., 129 N.J. 1, 10 (1992). "[T]he cornerstone of the inquiry is not whether the biological parents are fit but whether they can cease causing their child harm." Ibid. "The analysis of harm entails strict standards to protect the statutory and constitutional rights of the natural parents[,]" and the "burden falls on the State to demonstrate by clear and convincing evidence that the natural parents have not cured the initial cause of harm," and they "will continue to cause serious and lasting harm to the child." Ibid.

While recognizing the fundamental nature of parental rights and the need to preserve and strengthen family life, the Legislature has also recognized "the health and safety of the child shall be the State's paramount concern when making a decision on whether or not it is in the child's best interest to preserve the family unit." N.J.S.A. 30:4C-1(a). "The balance between parental rights and the State's interest in the welfare of children is achieved through the best interests of the child standard." K.H.O., supra, 161 N.J. at 347. The best interest standard, initially formulated by the Court in A.W., supra, 103 N.J. at 604-11, and codified in N.J.S.A. 30:4C-15.1(a), requires the State to establish each of the following standards by clear and convincing evidence before parental rights may be severed:

(1) The child's safety, health or development has been or will continue to be endangered by the parental relationship;

(2) The parent is unwilling or unable to eliminate the harm facing the child or is unable or unwilling to provide a safe and stable home for the child and the delay of permanent placement will add to the harm. Such harm may include evidence that separating the child from his resource family parents would cause serious and enduring emotional or psychological harm to the child;

(3) The division has made reasonable efforts to provide services to help the parent correct the circumstances which led to the child's placement outside the home and the court has considered alternatives to termination of parental rights; and

(4) Termination of parental rights will not do more harm than good. [N.J.S.A. 30:4C-15.1(a).]

These four requirements "relate to and overlap with one another to provide a comprehensive standard that identifies a child's best interests." K.H.O., supra, 161 N.J. at 348. The considerations involved are extremely fact-sensitive and require particularized evidence ...

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